Maksudan Misra Vs Addl. District Judge and Others

S.U. Khan, J.@mdashHeard learned Counsel for the parties.

2. O.S. No. 137 of 1975, Rameshwar Pande v. Surendra Misra and Ors. was decided on the basis of compromise on 24.3.1975 by IIIrd Additional Munsif, Ballia (compromise was dated 23.3.1979). In the said suit, petitioner was one of the defendants. Respondents No. 5 to 8, who were also defendants in the said suit, are real brothers of the petitioner. The only other defendant in the suit was Sheo Shanker Pande, respondent No. 4. There were only these six defendants in the suit. Petitioner filed application for setting aside the compromise decree, which was registered as Misc. Case No. 42 of 1979. Copy of the compromise or Judgment and decree passed on the basis of compromise have not been annexed alongwith writ petition. The petitioner and one of his brothers had entered into compromise through their counsel Sri Ram Adhar Tiwari. The other three brothers had themselves signed the compromise. The petitioner came forward with the case in his restoration application that he had not signed the vakalatnama. The petitioner did not adduce any expert evidence in respect of his alleged" signatures on the vakalatnama. The trial court compared the admitted and disputed signatures of the petitioner and found both of them to be exactly similar. In the absence of expert evidence or even in the presence of expert evidence, such course is open to the Court. The trial court/IIIrd Additional Munsif, Ballia, therefore rejected the petitioner''s application on 8.4.1982. Against the said order, petitioner filed Civil Revision No. 118 of 1982. The A.D.J., Ballia, dismissed the revision on 13.2.1986, hence this writ petition.

3. The petitioner had also pleaded that he was in military service and in March, 1979, he had not come to Ballia for signing vakalatnama. For signing vakalatnama, presence at the place, where vakalatnama has been filed, is not necessary. The trial court was perfectly justified in comparing the signatures by himself. Moreover, none of the other four brothers of the petitioner ever raised any objection to the compromise decree.

4. It has been argued by the learned Counsel for the petitioner that by virtue of Order XXIII, Rule 3, C.P.C. as amended through C.P.C. Amendment Act, 1976, it was necessary that the compromise should have been signed by the petitioner himself, hence compromise signed by the advocate was not sufficient. The argument is not tenable. Supreme Court in Rachakonda Venkat Rao and others Vs. Late R. Satya Bhai, by L.R''s. Smt. Rajkumari and others, has held that the said amended provision does not apply to the suits, which were pending at the time of the aforesaid amendment. The instant suit was filed in the year 1975, hence amended provision was not applicable. By virtue of Explanation added to Order XXIII, Rule 3, C.P.C. by Allahabad High Court w.e.f. 31.8.1974 along with other amendment in the main rule, it was provided that compromise included a Joint statement of the parties concerned or their counsel recorded by the Court.

5. Accordingly, I do not find any error in the impugned orders. Writ petition is dismissed.